State ex rel. Kelman v. Schaffer

• Decision Date: 27 October 1971
• Citation: 161 Conn. 522,290 A.2d 327
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. James KELMAN et al. v. Gloria SCHAFFER, Secretary of the State of Connecticut. STATE ex rel. James KELMAN et al. v. Reginald J. REYNOLDS, Town Clerk, the Town of New Canaan.

Page 327

290 A.2d 327

161 Conn. 522

STATE ex rel. James KELMAN et al. v. Gloria SCHAFFER, Secretary of the State of Connecticut.

STATE ex rel. James KELMAN et al. v. Reginald J. REYNOLDS, Town Clerk, the Town of New Canaan.

Supreme Court of Connecticut.

Oct. 27, 1971.

Michael P. Koskoff, Bridgeport, for appellants (plaintiffs) in each case.

Raymond J. Cannon, Asst. Atty. Gen., with whom, on the brief, was Robert K. Killian, Atty. Gen., for the appellee (defendant) in the first case and as amicus curiae in the second case.

Ira E. Hicks, New Canaan, for appellee (defendant) in the second case.

Before HOUSE, C.J., and COTTER, THIM, SHAPIRO and LOISELLE, JJ.

HOUSE, Chief Justice.

These two cases were consolidated for trial in the Superior Court in Fairfield County. The actions were brought by two plaintiffs, each between the ages of eighteen and twenty-one years. In the first instance the plaintiffs sought writs of mandamus ordering that their names be placed on the ballot in the town of New Canaan as candidates for the town council, for which positions they had received the endorsement of the Democratic Town Committee and the New Canaan Democratic caucus. By later amendment to their complaints, they also sought a declaratory judgment that the Connecticut statutes do not prohibit electors under age twenty-one from holding municipal office in the town where they reside, that General Statutes § 1-lc ¹ is unconstitutional, that a denial of their right to hold municipal office violates the twenty-sixth amendment to the constitution of the United States, and that if elected they are entitled to hold office in the town of New Canaan.

The trial court denied the petitions for writs of mandamus and rendered a declaratory judgment: (a) that § 1-lc of the General Statutes has not been amended, superseded or repealed by Public Act No. 675, 1971 Session; ² (b) that §§ 9-186 and 1-lc do prohibit citizens under the age of twenty-one from holding municipal office in the towns wher they reside; and (c) that the plaintiffs if elected are not entitled to hold municipal office in the town of New Canaan. From this judgment the plaintiffs appealed and, relying on both the provisions of § 762 of the Practice Book, as amended and the provisions of § 52-265a of the General Statutes, moved that this court expedite the appeal and defer the printing of briefs until after argument. This court acted under the provisions of Practice Book § 762 and, to expedite a decision on the appeal, suspended the general rules and time provisions for appeals to this court, consented to hear the appeal on an agreed statement of facts and on typewritten briefs, subject to later printing, and specially assigned the appeal for prompt hearing.

On their appeal to this court, the plaintiffs made no claim of error in the decision of the trial court denying their petitions for writs of mandamus and limited their assignments of error to the conclusions of that court as expressed in the declaratory judgment which it rendered.

Despite the efforts of this court to expedite a decision on the merits of the appeal, an examination of the record and the questioning of counsel when they appeared for argument disclosed an insuperable jurisdictional obstacle first raised by a special defense properly pleaded in the trial court by the defendant the Secretary of the State. Under the circumstances, and the lack of jurisdiction appearing obvious, this court announced from the bench its decision that the trial court was without jurisdiction to render the declaratory judgment which it did and that an opinion would subsequently be filed setting forth the reasons for the decision. This is that opinion.

The mandamus actions were technically brought in the name of the state's attorney for Fairfield County. Aside from his technical appearance, the only parties to the actions were the two plaintiffs, the town clerk of the town of New Canaan and the Secretary of the State. It does not appear that any other person was made a party to the actions or was given notice of the pendency of the complaints despite the allegation of the complaints that the plaintiffs were the nominees of the Democratic caucus of New Canaan and that 'the rights . . . of the electorate of New Canaan under the laws and Constitution of the United States and laws of the State of Connecticut' were involved in the litigation before the court.

As noted, the jurisdictional requirement of a notice to or joinder as parties of all persons having an interest in the subject matter of a complaint for a declaratory judgment was expressly raised in the trial court by the special defense pleaded by the Secretary of the State. This defense specifically pleaded the provisions of § 309 of the Practice Book. As recently as United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 383, 260 A.2d 596, 606, we again fully discussed this jurisdictional requirement in the following language which is hardly subject to misinterpretation: 'Practice Book § 309 specifically provides that '(t)he court will not render declaratory judgments upon the complaint of any person: . . . (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.' 'We have consistently stressed that strict observance of this jurisdictional requirement is necessary.' Sloane-Wheeler Corporation v. Odiseos, 154 Conn. 705, 707, 226 A.2d 508, 509. Among the multitude of recent cases repeating and reemphasizing this requirement, see Knights of Columbus Council v. Mulcahy, 154 Conn. 583, 585, 227 A.2d 413; DeDominicis v. Cornfield Point Ass'n, 154 Conn. 504, 505, 227 A.2d 89; Manafort Bros., Inc. v. Kerrigan, 154 Conn. 112, 114, 222 A.2d 218. As this court said in Benz v. Walker, 154 Conn. 74, 77, 221 A.2d 841, 842: 'This rule is not merely a procedural regulation. It is in recognition and implementation of the basic principle that due process of law requires that the rights of no man shall be judicially determined without affording him a day in court and an opportunity to be heard. We had recent occasion to reiterate with approval in Winick v. Winick, 153 Conn. 294, 298, 216 A.2d 185, the words of this court in Ackerman v. Union & New Haven Trust Co., 91 Conn. 500, 508, 100 A. 22, 25: 'It is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard. This firmly fixed limitation, which, kin effect if not techinically in all cases, is a jurisdictional one, is as binding in English practice as it is with us. It is a principle safe from the reach of attack by remedial legislation because of its sound constitutional basis." 'The plaintiffs' right to seek a declaratory judgment involves the jurisdiction of the court to entertain the action and may be raised at any time. Riley v. Liquor Control Commission, 153 Conn. 242, 248, 215 A.2d 402; McGee v. Dunnigan, 138 Conn. 263, 268, 83 A.2d 491.' Rothkopf v. Danbury, 156 Conn. 347, 352, 242 A.2d 771. Even though the question of the jurisdiction of the trial court to entertain the action has not been raised in or considered by the trial court, since it is jurisdictional it must be considered on appeal. Tellier v. Zarnowski, 157 Conn. 370, 373, 254 A.2d 568; see Liebeskind v. Waterbury, 142 Conn. 155, 159, 112 A.2d 208.'

We have consistently insisted on a strict observance of this rule. In addition to the cases already cited, see Wenzel v. Danbury, 152 Conn. 675, 677, 211 A.2d 683; DeForst & Hotchkiss Co. v. Planning & Zoning Commission, 152 Conn. 262, 270, 205 A.2d 774; Brewster v. Brewster, 152 Conn. 228, 236, 206 A.2d 106; Leo Foundation v. Cabelus, 151 Conn. 655, 658, 201 A.2d 654; Connecticut Society of Architects, Inc. v. Bank Building & Equipment Corporation, 151 Conn. 68, 77, 193 A.2d 493; Adams v. Greenwich Water Co., 138 Conn. 205, 217, 83 A.2d 177; Fisher v. Kallenbach, 135 Conn. 147, 149, 62 A.2d 336; Brennan v. Russell, 133 Conn. 442, 445, 52 A.2d 308.

As we noted in Benz v. Walker, 154 Conn. 74, 78, 221 A.2d 841, 843, quoting from National Transportation Co. v. Toquet, 123 Conn. 468, 484, 196 A. 344, when the persons having a direct interest in the subject matter of a declaratory judgment action 'are reasonably within the reach of process and are not so numerous that it would impose an unreasonable burden upon the plaintiff, they should be made parties; but if they or some of them are not reasonably available for service or to summon them or all of them into the action would put upon the plaintiff a burden he ought not fairly to be asked to assume, the provision for reasonable notice applies. The...